Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-15
,cboo, lands II .lso .nne.rs that ante

school lands. 1t also appears that ante
rior to said Judgment there had been
transaction between the county and Tom-
linson by which the county had issued MIN
scrip to the amount of Sl70 For tnls
the Commissioners court claimed credlt
for the county, and Tomlinson admitted
It in two statements fled in the court. IL
is insisted that everything behind tn!s
Judgment is res sdjudicata, and tnat ms
credit cannot be allowed the county. but
we do not coincide in this view. 1t does
not appear that the litigation which re-
suited in the Judgment necessarily en-
brsced a settlement Of all amounts pc
tween the parties, and certainly the
Judgment contains no reference TO THIS
particular transaction. We conclude
that relstor failed to show that the
Commissioners court had clear duty to
perform which it refused to discharge,
and we must hold that the court below
did not err in its Judgment in refusing
the peremptory writ of maudamus. The
judgment will accordingly be affirmed.
Gaines, J.
J. B Edwards ct al. VS.. John A. Chisen-
holm; appeal from r Dckwall county.
Appellee brought this suit to recover OF
appellants damages for the destruction by
fire of some straw and other personal
property, claimed to have been caused
through the negligence Of defendants
The cause was tried by the court without
Jury; but in the id ge's concl 1sions OF
fact there was no finding as to whether
the act complained of was negligent or
not, but the conclusions of law were as
follows; "Thst the emptying OF the fire.
box of the engine SO near the straw stack
was negligence on the part Of the de-
PENDANTS, and that they are liable for the
damages sustained by plaintiff by re son
of said fire amounting to $95 55." 1t Is
assigned as error, that the court not
having found negligence es a mstter OF
feet, erred in its legal conclu-
sion that the deposit of the
contents CT the frebox near the
straw stack was negligence per sei and
we think the assignment we'll taken and
for the error indicated the Judgment is
reversed and the cause remanded.
Gaines, j.
James P. Thompson ct al. vs.. f. E.
Griffin. This is a suit upon land note
and for foreclosure on certain tract OF
land. 1t is assigned that the court erred
in overruling the demurrer to plaintiff
reply of res adjudicata to the defendants
plea of judgment. 1t Is true that the
plaintiff alleges in his reply that the same
charges and items pleaded in this action
we're set up in another suit upon other
notes given for the purchase of the lands
mentioned in the petition, and that the
charges and items were considered
and settled by the Judgment in that case
This may be true, and yet the plaintiff
is not entitled to recover in this action.
The pies alleged that the produce deliv-
cred was to be credited as well upon the
note here sued on as upon the notes
which were the basis of the other claim.
II so, it was perfectly competent in that
action to show that the produce had sat-
isfied the note here sued on, as we'll as
those claimed in that case to have been
paid. To have made the plea of res edju-
d lcata good it was necessary to mega
tive the idea that the present
note was ever taken into consid GRAFTON in
that case in determining how much of the
produce was TO be spilled towards the
payment Of the notes then in suit. We
think the demurrer should have been sus-
tanned, and for the error committed in
everything same the Judgment will be re-
versed and the case remsnded. Willie,
CD.